The article deals with the issue of recourse to Article 32 for violation of Fundamental Rights. But it is subject to fundamental principles of administration of justice.

Context

• The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

Recourse under Article 32 is not absolute

• The apex judicial process shows clearly that the Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
• The Supreme Court has already extended rules and doctrines such as laches (delays) or res judicata (a matter already decided by a competent court) or any other principle of administration of justice.
• Article 32 keep open “the doors of this court” and requires the state not to “put any hindrance” to a person seeking to approach the Court.
• However, the Court must ignore all laws of procedure, evidence, limitation, res judicata and other provision.
• The Supreme Court has also said that faith “must be inspired in the hierarchy of Courts [ Recourse under Article 226 should be sought before approaching the SC] and the institution as a whole” and not” only in this Court alone”.
• So, even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.

New facets of Article 32

• The Supreme Court has also discovered new facets of Article 32.
• As early as 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
• In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
• In 1999 it said that this power extended to the rectification of its own mistakes or errors.

Comparing Article 226 and Article 32

• Article 226 is the very dimension; the high court’s vast jurisdiction technically casts no duty on them to enforce fundamental rights.
• They have the discretion to act or not to; in contrast, the Supreme Court must.
• Fourth, Article 32 is not absolute, the Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
• But the Court may not prescribe any process as it likes but only that process which preserves, protects and promotes the right to constitutional remedies.

Need for effective bail system

• The just demand for an expeditious and effective bail system stems from manifest discrimination in bail .
• In several instances, one case is fast-tracked whereas others are consigned to slow-moving judicial action, even when rights to life and health are endangered.
• Scandalous judicial delays, measures of decongestion and diversion, and a bold resolution of “who watches the watchman” syndrome now demand urgent apex response.

Consider the question “Seeking remedy from the Supreme Court for the violation of fundamental rights under Article 32 is also a fundamental right. However, enforcement of it is not absolute. In light of this, examine the challenges in its enforcement by the Supreme Court.”

Conclusion

Article 32 makes the apex court into a “people’s court”. And future historians should not be able to conclude that the Court deliberately dealt deathblows to this “soul” of the Constitution, as Babasaheb Ambedkar described Article 32.

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